' M. S. H. QURAISHI, J.-This appeal by leave of the Court arises from a suit brought by the appellants for ejectment of the respondents from the premises in question and for da nages and mesne profits, which suit was decreed by the trial Court but on appeal was dismissed by the High Court by the impugned jugment dated 30-3-1971.
2. The premises, then in possession of Messrs Pragjee Damjee & Company as tenants, was purchased by the appellants on 23-10-1947 from its Hindu owner who became evacuee. According to the appellants, the said tenants had unauthorisedly handed over the possession of the premises to the respondents. They, therefore, filed the suit in the Sind Chief Court on 18-4-1950. As the respondents in their written statement claimed that they had acquired ownership of the firm Pragjee Damjee & Company and had aid rent to the Custodian from 1-1-1948 to 31-8-1949, a reference was made to the Custodian on 12.4-1955 under section 34 of the Pakistan (Administration of Evacuee Property Ordinance (XV of 1949) for determining:
(1) Whether the tenancy rights of Messrs Pragjee Damjee & Company had become evacuee property after 1-1-1948, and
(2) whether the Custodian would defend the suit?
' The Additional Custodian held, by order 1-8-1958, that the said tenancy rights b'ame evacuee and continued to be so after 1-1-1948 However, in revision, the Custadian by his order dated 22-9-1959 made a declaration under section 9(1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) to the effect that he stood absolved of all the responsibilities with respect to the disputed premises. In making the declaration he also observed that Messrs Pragjee Damjee & Company, the occupants of the premises, at the time of their migration, handed over possession to the respondents., who "are occupying it as allottees under the. Custodian and are paying rent to him".
The Additional District Judge, to whom the suit had meanwhile been transferred, held that Messrs Pragjee Damjee & Company had no right to sublet or assign the tenancy and that the tenancy rights having become non-evacuee on the passing of the order of the Custodian dated 22-9-1959, the respondents became unauthorised occupants and, accordingly, he decreed the suit. Before the High Court, the counsel appearing for the appellants conceded that the respondents were allottees and rents had been paid to the Custodian but contended that the allotment not having been made under the provisions of Act XII of 1957, the respondent could not claim benefit of the effect of section 9(2) (a) of that Act. This provision reads : - "9. Special provision with respect to transfer of occupancy or tenancy rights of evacuees.- (1)
(2) On the making of such declaration as is referred to in subsection (1),-
(a) the allotment of the evacuee occupancy or tenancy rights shall be deemed to have effect as if granted by the lessor under whom the property was held before it vested in the Custodian and shall continue to have such effect until it is determined by lapse of time or by operation of law."
' He further contended that the allotment having been made under the earlier Ordinance XV of 1949 and there being no corresponding provision in that Ordinance, the respondents could not claim any right of tenancy in the premises. The contentions, however, did not find favour with the High Court for the reason firstly that as conceded by him there was no clear indication on the record as to the date on which the allotment had been made and secondly that no such plea had been taken as to the date of the allotment and its effect under Ordinance XV of 199. The High Court, thereupon, rejected the contention that the occupation became unauthorised after the Custodian's declaration dated 22-9-1959.
3. For 'the grant of leave it had been contended that -
(1) there was never any allotment of the property in favour of the respondents ;
(2) the Custodian was not competent to make the declaration dated 22-9-1959 ; and
(3) in any case, the suit at least in respect of rents mesne profits could not have been dismissed.
4. The correctness of the observation made by the Custodian that the respondents were allottees has been questioned before us by learned counsel for the appellants but we feel unable to go into the question because the declaration which had been made in the appellants' own revision had, without doubt, acquired finality and, was binding on them. The learned Custodian had clearly held that the respondents who had obtained possession from Messrs Pragjee Damjee & Company, the provious tenants, were occupying the premises as allottees under the Custodian and were paying rent to him. In fact, the use of the present tense "are" in the observation is indicative of the status of the respondents as allottees being relatable to the date of the declaration, that is, 22-9-1959, which was much after the enactment of Act XII of 1957 and as such they were entitled to claim the benefit of the effect of section 9(2) (a) of the Act. But even if the allotment were relatable to a date prior to the Act, that would make no difference because it would still be deemed to be an allotment under the Act by virtue of its section 18(2). Moreover, the fact that the respondents were allottees, is not only to be found in the Custodian's declaration but had also been taken as a plea by the appellants themselves before the trial Court vide para. 43 of its judgment and had been conceded before the High Court vide para. 10 of the impugned judgment. Their plea before the trial Court, in fact, had only been that the respondents even if allottees could not become tenants of the Custodian but this would be in total disregard of the provision of section 9(2) (a) of the Act which confers on the allottee of evacuee tenancy rights, the status of a tenant under the owner of the property unless determined by lapse of time B or operation of law. The respondents thus being tenants of the appellants and not trespassers, a suit for their ejectment was not maintainable and had been rightly dismissed by the High Court.
5. As regards claim to rents mesne profits, Mr. Fakharuddin G. Ebrahim, learned counsel for the respondents, readily conceded the respondents' liability in this regard, and stated that they had already deposited the amount as due from 22-9-1959 in Court which the appellants could withdraw at will and held out an assurance that the respondent would make up deficiency if any in the deposits. To this learned counsel for the appellants agreed. By consent of the parties, we, therefore, direct that the decree passed by the High Court shall stand amended to this extent.
6. Except for the amendment in the decree as above, the appeal is dismissed. There shall be no order as to costs.